So let’s discuss what everyone else is discussing: the “Zombie Mohammed” case. Earlier this month, Judge Mark W. Martin dismissed a harassment charge against Talaag Elbayomy, a Muslim man who allegedly attacked Ernie Perce, an atheist who was dressed up as “Zombie Muhammad.” The incident took place during last year’s Halloween parade in Mechanicsburg, Pennsylvania.

Since news of the ruling became public, things have gone crazy. Let’s discuss, and take an opinion poll….

Early reports, some of them factually erroneous, tried to cast this case as “Sharia Law Comes to Pennsylvania.” There were rumors that Judge Martin was a convert to Islam and that his dismissal of the charges against Elbayomy reflected pro-Muslim bias. These rumors were incorrect; as it turns out, Judge Martin is a Lutheran (and has been for over 40 years).

But one can see how the rumors got started. Judge Martin didn’t do himself any favors in his handling of this case. He engaged in some unnecessary scolding of the alleged victim, Ernie Perce, which arguably made him sound like he’s biased in favor of Islam, holds an overly narrow view of free speech, or both. Here’s what the judge said, according to one unofficial transcript of an audio recording of the proceedings (via Professor Jonathan Turley):

[H]aving had the benefit of having spent over two-and-a-half years in predominantly Muslim countries, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Quran here, and I would challenge you, Sir, to show me where it says in the Quran that Muhammad arose and walked among the dead. I think you misinterpreted a couple of things. So before you start mocking somebody else’s religion, you might want to find out a little more about it. It kind of makes you look like a doofus.…

(Some critics of Judge Martin cite this language and complain that the judge was calling an alleged crime victim a “doofus.” As the judge has observed in his own defense, though, he wasn’t directly calling Perce a “doofus”; he was merely observing that if one makes fun of a religion based on misconceptions about it, then one looks like a doofus.)

More from Judge Martin:

In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.

Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.

Based on this language, Judge Martin’s critics contend that he may have a cramped view of the First Amendment. From Professor Turley:

I fail to see the relevance of the victim’s attitude toward Muslims or religion generally. He had a protected right to walk in the parade and not be assaulted for his views. While the judge laments that “[i]t’s unfortunate that some people use the First Amendment to deliberately provoke others,” that is precisely what the Framers had in mind if Thomas Paine is any measure.

Here at Above the Law, we’re quite fond of using our First Amendment rights to “deliberately provoke others.” So we share Profess Turley’s concerns.

Professor Eugene Volokh, who notes that the dismissal of the charges against Talaag Elbayomy might well have been justified based on the evidence, was also troubled by Judge Martin’s remarks:

The judge concluded there wasn’t enough evidence to convict Elbayomy of the crime, and it’s possible that there was indeed inadequate evidence. A police officer reports that Elbayomy had admitted that he grabbed the parader and tried to grab his sign; but it’s possible that the judge found this evidence to not be credible enough to prove guilt beyond a reasonable doubt. Moreover, it appears that Elbayomy was prosecuted for criminal harassment, which requires an “intent to harass, annoy, or alarm,” and a mere physical attack with an attempt to grab a sign might or might not qualify, see the pen-grabbing discussion in this case. The acquittal itself might thus be justified, depending on exactly what evidence was introduced.

But the worrying thing is what the judge (Mark Martin) seems to have said at the trial, based on what appears to be a recording of the hearing: The judge… [said he] found the speech to be offensive [and] spent a good deal of time berating the victim for what the judge saw as the victim’s offensive and blasphemous speech, which seems to raise a serious question about whether the judge’s acquittal of the defendant was actually partly caused by the judge’s disapproval of the victim.

You can read detailed accounts of the underlying confrontation and the hearing from Professor Turley and Professor Volokh (two of the many legal academics who have opined on this case).

So far we’ve quoted comments critical of Judge Martin. Let’s offer some points in his defense, and then open up our reader poll about him….

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